'Alford pleas' on the rise for potentially innocent defendants

On behalf of Patrick T. McNally, Attorney at Law posted in Post Conviction on Saturday, January 27, 2018.

When a defendant is exonerated, what happens next? Suppose the defense proves that DNA evidence from the crime scene does not match the defendant. Or, perhaps a key witness recants their story. In some cases, misconduct by the police, prosecutors or the jury is discovered. Once it's clear that the prosecution's case is insufficient to prove guilt beyond a reasonable doubt, does the defendant walk free?

Not necessarily. What happens next is up to the prosecution, believe it or not. There will be a hearing before a judge, but it rarely goes like you've probably seen in the movies. There's usually no apology on behalf of the state.

Instead, according to ProPublica, a carrot and a stick are dangled before the defendant. The prosecution vows to retry the case if the defendant insists upon their innocence. But if the defendant agrees to what is known as an "Alford plea," they can go free right away. Another tactic is for the prosecution to offer to change the defendant's sentence to time served but to leave the conviction intact.

An Alford plea is essentially a "no contest" plea. It allows defendants to assert their innocence while acknowledging the prosecution could convict them. In its real effect, it acts as a guilty plea and a conviction.

When someone is wrongfully convicted, taking an Alford plea may seem like a way out of a tragic situation. However, it is a misuse of the prosecutor's power to prosecute when they know there is reasonable doubt.

Perhaps more important, both Alford pleas and time-served arrangements leave the defendant with a conviction and all the legal disabilities that entails. A convicted felon loses their right to vote, to hold certain licenses, to possess firearms and more. Getting a job and housing are difficult. And, someone who has been convicted typically cannot file a civil rights suit for compensation for time wrongly spent behind bars.

ProPublica says that no one is actively keeping track of how many Alford pleas and time-served arrangements are being offered in cases where the defendant's guilt is reasonably in doubt.

In cases the nonprofit journalism group examined, prosecutors said they were offering these deals because they were sure the defendants were guilty. All too often, however, the underlying reason appears to be avoiding investigations. Official misconduct is frequently the explanation for how evidence pointing to the defendant's innocence is discovered so late in the process.

Another important point comes up in such cases. When prosecutors fight to retain convictions in cases where the defendant may be innocent, they may be letting the guilty party go free.

The use of the Internet or this form for communication with the firm or any individual member of the firm does not establish an attorney-client relationship. Confidential or time-sensitive information should not be sent through this form.